Case Comment: Louca v A German Judicial Authority  UKSC 4
19 Thursday Nov 2009
The decision of the Supreme Court in Louca v A German Judicial Authority  UKSC 4 concerned the nature of the detail required in the standard form box (b) that appears on a European Arrest Warrant form. The form must be filled in by a requesting European judge or judicial authority before a person can be arrested for extradition. Unlike most forms to be filled in, the EAW form does not come with accompanying notes for guidance, over and above what was in the Framework Decision. Since ‘judicial authorities’ come in many different guises within the EC – some not recognisably judge-like at all, such as police or prosecuting bodies, some guidance is clearly needed.
The Supreme Court has now provided its own ‘notes for guidance’ on this part of the form which read:
“Box (b): This box should contain details of enforceable domestic judgments, arrest warrants or other decisions only. It should not contain any withdrawn warrants or orders and should not include details of any other European arrest warrant issued in respect of the alleged offending. Only include details of judgments, warrants and orders that are for the purpose of conducting a criminal prosecution or executing a custodial sentence or detention order. These must relate to acts punishable by domestic law by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months.”
The decision in Louca reveals a case that was, in truth, dead on its feet once it had been argued before the House of Lords in July 2009. The appellant had had then to concede that the tentative conclusion by Dyson LJ that box (b) should list EAW’s was wrong and that box (b) needed to list domestic judgments and warrants. The concession was not surprising since Dyson LJ had himself decided his earlier suggestion had been wrong.
The only real argument was whether it was necessary to list other EAW’s in order to permit the arrested person to argue about any abuse of process that might arise from the repeated reformulation of charges against him. This was never a live issue in this case since Louca and his lawyers were well aware of the charges that had been made and had not argued that they were abusive. It was never likely that this argument would succeed in this case in any event since each of the earlier EAW’s had been withdrawn so they could hardly be regarded as “enforceable”.
This case (as with a number of EAW cases) confirms the trend in the Supreme Court to uphold substance over form and purposive over linguistic interpretation. It emphasises the problems that has been caused by the failure in the Extradition Act 2003 to adopt the language used in the Framework Decision. The use of different words and concepts in the 2003 Act has again led to difficulty. Instead of requiring details to be provided of what Article 8.1(c) of the Framework Decision refers to as “enforceable” warrants, the draftsman of the 2003 Act required “particulars of any warrant issued in the category 1 territory for the person’s arrest in respect of the offence” to be given. If an EAW is not a warrant “issued” in respect of the offence then it is hard to see what else it might be. However, as the Supreme Court has now held, that language must be read in the light of the purpose of the 2003 to give effect to the Framework Decision What need to be provided is details of only those domestic warrants that have been issued and that are enforceable.